UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
REUVEN GILMORE, et al.
Plaintiffs,
Civil Action No. 1-853 (GK)
v.
PALESTINIAN INTERIM SELF-
GOVERNMENT AUTHORITY, et al . ,
Defendants.
MEMORANDUM OPINION
Plaintiffs are family members and the estate of Esh Kodesh
Gilmore, a United States national killed in a shooting on
October 30, 2000, in East Jerusalem. They bring this case
against Defendants, the Palestinian Interim Self-Government
Authority ( "PA") and the Palestine Liberation Organization
( "PLO") (collectively, "Defendants") pursuant to the Anti-
Terrorism Act of 1991 ("ATA"), 18 U.S.C. § 2331, et seq., and
related common law theories.
This matter is before the Court on Defendants' Motion for
Judgment on the Pleadings for Lack of Personal Jurisdiction
[Dkt. No. 359]. Upon consideration of the Motion, Opposition
[Dkt No. 371], and Reply [Dkt. No. 374], and the entire record
herein, and for the reasons stated below, Def-endants' Motion
shall be denied.
I. BACKGROUND
Esh Kodesh Gilmore was shot and killed on October 30, 2000,
at a branch office of the Israeli National Insurance Institute
in East Jerusalem. On April 18, 2001, Plaintiffs filed this
action against Defendants, as well as eleven of their current
and former employees (the "Individual Defendants"), seeking
compensation for Gilmore's death under the ATA and related
theories.
Defendants and the Individual Defendants initially failed
to file a responsive pleading, leading the Court to enter a
default on December 20, 2001 [Dkt. No. 18] . On January 29,
2002, Defendants and the Individual Defendants appeared through
counsel and moved to vacate the entry of default, which the
Court granted on April 17, 2002 [Dkt. No. 37]. At the same
time, Defendants moved to dismiss the case for failure to state
a claim and lack of subject matter jurisdiction, and the
Individual Defendants moved to dismiss for lack of personal
jurisdiction [Dkt. No. 20]. On March 7, 2006, the Court denied
Defendants' Motion to Dismiss for lack of subject matter
jurisdiction and failure to state a claim, but granted the
Individual Defendants' Motion to Dismiss for lack of personal
jurisdiction. See generally Gilmore v. Palestinian Interim
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Self-Government Auth., 422 F. Supp. 2d 96 (D. D.C. 2006)
("Gilmore I").
After the Court denied their Motion to Dismiss, remaining
Defendants PA and PLO failed to file an Answer to the Complaint,
prompting the Court to enter a second default. See Order of
Jan. 29, 2007 [Dkt. No. 92]. Defendants then retained new
counsel and on November 15, 2007, moved to vacate their second
default ("Second Mot. to Vacate") [Dkt. No. 107]. On December
28, 2009, after lengthy briefing on that Motion, the Court
vacated Defendants' second default, concluding that there was "a
strong public interest" in resolving the parties' claims and
defenses on their merits. Gilmore v. Palestinian Interim Self-
Gov't Auth., 675 F. Supp. 2d 104, 113 (D. D.C. 2009) ("Gilmore
I.!") .
The case then entered a two-and-half year discovery phase,
which concluded for all practical purposes in 2012, although the
parties continued to litigate various discovery disputes
throughout 2013. On August 9, 2012, Defendants filed a Motion
for Summary Judgment. See generally Defs.' Mot. for Summ. J.
[Dkt. No. 285]. On February 10, 2014, after the Motion for
Summary Judgment had been fully brief.ed but before it had been
decided, Defendants filed the instant Motion for Judgment on the
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Pleadings for Lack of Personal Jurisdiction [Dkt. No. 359]. On
April 2, 2014, Plaintiffs filed their Opposition [Dkt. No. 371].
On April 14, 2014, Defendants filed their Reply [Dkt. No. 374].
II. Defendants Have Waived their Defense of Personal
Jurisdiction
Defendants rely on Daimler AG v. Bauman, 134 S. Ct. 746
(2014), in which the Supreme Court held that ~a court may assert
[general] jurisdiction over a foreign corporation only
when the corporation's affiliations with the [forum] are so
constant and pervasive 'as to render [it] essentially at home in
the forum State.'" Daimler, 134 S. Ct. at 751 (citing and
relying upon Goodyear Dunlop Tires Operations, S .A. v. Brown,
131 S. Ct. 2846, 2851 (2011)). Defendants contend that they are
not subject to general jurisdiction under the ~at home" standard
discussed in Daimler and also are not subject to specific
jurisdiction. Mot. at 1.
Plaintiffs argue that Defendants have waived their
jurj,.sdictional defense by litigating this case on· its merits for
more than a decade. They further contend that the standard
discussed in Daimler does not apply to Defendants because they
are governmental entities and that, even if the Court lacks
general jurisdiction over Defendants, it has specific
jurisdiction. As set forth below, the Court agrees that
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Defendants have waived their jurisdictional defense and
therefore need not reach the parties' other arguments.
A. Personal Jurisdiction Is a Waivable Defense
"Because the requirement of personal jurisdiction
represents first of all an individual right, it can, like other
such rights, be waived." Insurance Corp. of Ireland v.
Compagnie des Bauxites de Guinee, 456 U.S. 694, 703 (1982).
Rule 12(g) and (h) of the Federal Rules of Civil Procedure
describe two nonexhaustive ways in which the defense is waived.
As relevant here, Rule 12(g) (2) provides that "a party that
makes a motion under this rule must not make another motion
under this rule raising a defense or objection that was
available to the party but omitted from its earlier motion."
Fed. R. Civ. P. 12(g)(2). Rule 12 (h) states that "[a] party
waives any defense listed in Rule 12(b) (2)-(5) by . omitting
it from a motion in the circumstances described in Rule
12(g) (2) [.]" Fed. R. Civ. P. 12 (h) (1) (A). The collective
import of these two provisions is that "[i] f a party files a
Rule 12(b) motion to dismiss, it may not subsequently assert any
Rule 12(b) defenses that were available when the first Rule
12 (b) motion was filed." Candido v. Dist. of Columbia, 242
F.R.D. 151, 161 (D. D.C. 2007) (citing Fed. R. Civ. P.
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12 (g), (h) (1); Chatman-Bey v. Thornburgh, 864 F.2d 804, 813 (D.C.
Cir. 1988)).
A defense is unavailable for purposes of Rule 12(g) (2) "if
its legal basis did not exist at the time of the answer or pre-
answer motion," so that it was "for all practical purposes
impossible for the defendants to interpose their
defense [.]" Chatman-Bey, 864 F.2d at 813 n.9. Although an
unavailable defense is not, under Rule 12(h), waived by omission
from an earlier Rule 12 motion, the defense must be raised "as
soon as [its] cognizability is made apparent." Holzsager v.
Valley Hosp., 646 F.2d 792, 796 (2d Cir. 1981). Otherwise, the
newly available defense is subject to waiver "by failure to
assert it seasonably, by formal submission in a cause, or by
submission [to the court's jurisdiction] through conduct."
Neirbo Co. v. Bethlehem Shipbuilding Corp., 308 U.S. 165, 168
(1939).
B. The Defense of Personal Jurisdiction Was Available to
Defendants
More than a decade ago, Defendants moved to dismiss the
case for lack of subject matter jurisdiction and failure to
state a claim under Rule 12 (b) (1) and {6). They did not,
however, raise their personal jurisdiction defense at that time.
See Gilmore I, 422 F. Supp. 2d at 102 n.4 (noting that
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"Defendants [PA and PLO] did not move to dismiss this
action for lack of personal jurisdiction."). As a consequence,
the jurisdictional defense has been waived if either: ( 1) it was
"available" in 2002 when the Motion to Dismiss was filed, see
Rule 12 (h) (1) (A), or ( 2) it later became "available" but
Defendants failed to promptly assert it. Holzsager, 646 F.2d at
796.
1. The Defense Was "Available" in 2002 and Therefore
Waived Under Rule 12{h) {1) {A)
Defendants contend that their personal jurisdiction defense
was not available in 2002 because the Supreme Court had not then
held that a foreign defendant is only subject to general
jurisdiction if its affiliations with the forum are so
continuous and systematic as to render it "essentially at home"
in the forum State. Defendants claim that until the Supreme
Court announced the "at home" rule, their jurisdictional defense
was simply not "available." As discussed below, this argument
is belied by Defendants' own litigation history in this case.
Between 2002 and 2011, Defendants contested the Court's
personal jurisdiction on multiple occasions despite the fact
that they never moved for dismissal on that basis. For example,
on February 15, 2002, less than one month after filing their
original Motion to Dismiss, Defendants argued in a separate
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filing that "Personal Jurisdiction is Lacking Over the
Palestinian Authority" because "[t] he PA is not present in the
U.S." Defs.' Opp' n to Pls.' Mot. for Default J. at 6-7 [Dkt.
No. 23]. On November 15, 2007, in a proposed Answer attached as
an exhibit to their Second Motion to Vacate, Defendants again
asserted that the Court lacked personal jurisdiction. See
Second Mot. to Vacate, Ex. G at 2 [Dkt. No. 107-7] ("This Court
lacks personal jurisdiction over the Defendants with respect to
this action."). On April 25, 2011, Defendants formally re-filed
their Answer [Dkt. No. 218], raising the defense of personal
jurisdiction for a third time.
Furthermore, on May 31, 2011, after Plaintiffs moved to
strike Defendants' jurisdictional defense, Defendants filed an
Opposition brief arguing that:
Defendants have raised the issues of personal
jurisdiction and venue in every other case i.n which
undersigned counsel have appeared on behalf of
Defendants, as had predecessor counsel. Defendants
believe that the courts of the United States do not
have personal jurisdiction over them and that venue is
also therefore improper, and Defendants do not intend
to waive these defenses in the United States.
Defs.' Opp'n to Pls.' Mot. to Strike Affirmative Defenses at 10
[Dkt. No. 233].
During the same time period, Defendants - represented by
the same counsel also challenged personal jurisdiction in
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several related cases. See, e.g., Knox v. Palestine Liberation
Org., 229 F.R.D. 65, 68 (S.D.N.Y. 2005) ("defendants
oppose the assertion of personal jurisdiction over them"); Biton
v. Palestinian Interim Self-Gov 1 t Auth., 310 F. Supp. 2d 172,
175 (D.D.C. 2004) ("The defendants assert a lack of personal
jurisdiction over the PA"); Estates of Ungar ex rel.
Strachman v. Palestinian Auth., 153 F. Supp. 2d 76, 82 (D.R. I.
2001) ("This matter is before the Court on the PA defendants 1
motion to dismiss the complaint for lack of personal
jurisdiction[.]").
Defendants' argument that their personal jurisdiction
defense was "unavailable" prior to the Supreme Court's
announcement of the "at home" rule therefore rings hollow in
light of the fact that they have been arguing since 2002 - in
this case and others - that such a defense is both "available"
and meritorious. Under Rule 12(h) (1) (A), Defendants thus waived
the defense by failing to include it in their original Motion to
Dismiss. 1
1
Defendants did not, as they argue, preserve the defense by
raising it in their Answer more than five years after they filed
their Motion to Dismiss. As the text of Rule 12(h) makes .clear,
"defendants wishing to raise [a defense of lack of personal
jurisdiction] must do so in their first defensive move, be it a
Rule 12 motion or a responsive pleading." Mitrano v. Jerry 1 s
Ford Sales, Inc., 82 F.3d 403, 1 (1st Cir. 1996) (second
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2. Defendants Failed to Promptly Assert the Defense
After the Supreme Court Announced the "at Home"
Rule
As already noted, Defendants base most of their argument on
their allegation that "[u] ntil Daimler was decided in January
2014," the specific argument asserted in their Motion, i.e.,
that their contacts with the District of Columbia do not render
them "at home" in this forum, was "simply not available." Reply
at 8. They characterize Daimler as a "game-changing decision,"
which was so "widely viewed as changing the legal landscape for
personal jurisdiction" that they could not have raised their
defense until after it was decided. Reply at 1, 8.
Even if Defendants were correct that a legal basis to
challenge the Court's jurisdiction did not exist until the
announcement of the "at home" rule (which, as discussed above,
is entirely inconsistent with their behavior in this and other
cases), they are flat-out wrong that Daimler was the genesis of
emphasis added) ( citation omitted) ; Lawton v. Peroulis, No. 6
Civ. 1125-REBMEH, 2007 WL 1879973 (D. Colo. June 27, 2007) ("By
the time Defendant asserted the defenses
in the Answer he had already waived [them] by not
including them in [his prior Rule 12 motion]"). Nor is this
conclusion altered by the Court's July 14, 2011, summary Order
denying Plaintiffs' Motion to Strike all fourteen of Defendants'
affirmative defenses. That Order was composed of a single
sentence and made no findings whatsoever as to whether
Defendants had or had not waived any defense.. See Order of
July 14, 2011 [Dkt. No. 251].
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that rule. The "at home" standard was unmistakably announced in
Goodyear Dunlop Tires Operations, S.A. v. Brown, 131 S. Ct. 2846
(2011), more than two and a half years before Defendants filed
the instant Motion. Therefore, as discussed below, even if
Defendants had not waived the defense under Rule 12 (h) ( 1) (A) ,
they have waived it by failing to promptly assert it after
Goodyear.
a. The "at Home" Rule Was Announced in
Goodyear, not Daimler
In Goodyear, which was decided on June 27, 2011, the
Supreme Court made crystal clear that a foreign defendant's
"'continuous activity of some sorts within a state, . is not
enough to support" general jurisdiction ~nless that activity is
"so 'continuous and systematic' as to render [it] essentially at
home in the forum State." 131 S. Ct. at 2851, 2856 (emphasis
added). The Court explained that " [ f] or an individual, the·
paradigm forum for the exercise of general jurisdiction is the
individual's domicile; for a corporation, it is an equivalent
place, one in which the corporation is fairly regarded as at
home." Id. at 2853-54 (emphasis added). The Court concluded
that general jurisdiction was lacking in that case because the
petitioners were "in no sense at home in [the forum] . " Id. at
2857 (emphasis added) .
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In Daimler, the Supreme Court emphasized repeatedly that it
was applying a rule it had previously announced in Goodyear.
For example, in its opening paragraphs, the Court stated:
In Goodyear we held that a court may assert
[general] jurisdiction over a foreign corporation .
only when the corporation's affiliations with the
[forum] are so constant and pervasive 'as to render
[it] essentially at home in the forum State.'
Daimler, 134 S. Ct. at 751 (citing Goodyear, 131 S. Ct. at
2851) (emphasis added). In later portions of its opinion, the
Court again discussed Goodyear, observing that "Goodyear made
clear that only a limited set of affiliations with a forum will
render a defendant amenable . to all-purpose jurisdiction," and
that "the inquiry under Goodyear is whether th[e]
[defendant's] 'affiliations with the State are so 'continuous
and systematic' as to render [it] essentially at home in the
forum State." Id. at 760, 761 (citing Goodyear, 131 S. Ct. at
2851, 2853-54. Thus, the Daimler opinion relied heavily on
Goodyear and in no way suggested that the "at home" standard was
a new rule. 2
2
To support their contention that Daimler announced a "new
rule," Reply at 1, Defendants cite a portion of Justice
Sotomayor's concurrence in which she expressed concern that the
Court had adopted "a new rule of constitutional law that is
unmoored from decades of precedent" and that "no court ha[d]
considered in the history of this case." Daimler, 134 S. Ct. at
773 (Sotomayor, J., concurring). However, Justice Sotomayor was
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Nor did the lower courts fail to appreciate the import of
Goodyear until Daimler was decided, as Defendants suggest. A
Westlaw search indicates that, from June 27, 2011, when Goodyear
was decided, until January 13, 2014, the day before Daimler was
decided, more than 250 federal court cases discussed Goodyear's
"at home" standard, including eighteen circuit court cases and
three cases in this District. See, e.g., United States ex rel
Barko v. Halliburton Co., 952 F. Supp. 2d 108, 116 (D.D.C.
2013); Khatib v. Alliance Bankshares Corp., 846 F. Supp. 2d 18,
26 (D. D.C. 2012); Mazza v. Verizon Washington DC, Inc., 852 F.
Supp. 2d 28, 42 n.13 (D.D.C. 2012).
In fact, Defendants themselves, represented by the same
counsel as in this case, twice invoked Goodyear's "at home"
standard before Daimler was decided. See Brief for PA at 19,
Livnat v. Palestinian Auth., Civ. No. 13-498 (E.D. Va. June 5,
2013) ("In Goodyear, the [Supreme] Court explained that
general jurisdiction permits a court to [exercise general
jurisdiction] 'when their affiliations with the State are so
not referring to the "at home" standard but to the majority's
conclusion about how to interpret that standard - namely that a
foreign defendant's contacts with the forum must be "viewed in
comparison to the company's nationwide and worldwide
activities." Id. at 770 (emphasis added). Justice Sotomayor
did not suggest in any way that the "at home" standard was
itself new.
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continuous and systematic as to render them essentially at home
in the forum state.'") ; Brief for PA and PLO in Opp' n to Pet.
for Writ of Certiorari, Mohamad v. Rajoub, 2011 WL 3664462, at
*17 (Aug. 19, 2011) ("For an individual, the paradigm forum for
the exercise of general jurisdiction is the individual's
domicile; for a corporation, it is an equivalent place, one in
which the corporation is fairly regarded as at home." (citing
Goodyear, 131 S. Ct. at 2853-54)).
In sum, even if Defendants' jurisdictional defense was not
"available" in 2002 when Defendants filed their original Motion
to Dismiss, it became available no later than June 27, 2011,
when Goodyear announced the "at home" standard. They did not
file the present Motion until February 10, 2014 - two and a half
years after Goodyear.
b. Defendants Failed to Promptly Assert their
Defense After Goodyear
As discussed, unavailable defenses must be raised "as soon
as their cognizability is made apparent." Holzsager, 646 F.2d
at 796. Defendants did not invoke the "at home" rule as soon as
Goodyear made that argument cognizable. Instead, they litigated
this case on its merits for more than two and a half years and
asked the Court to grant summary judgment in their favor before
ever seeking dismissal on jurisdictional grounds.
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"When a defendant participates in the litigation, delays in
making an objection to personal jurisdiction, and then makes an
objection that could have been easily [addressed] in the
first place, the defendant has waived the personal jurisdiction
objection." United States v. Brow, No. 01-CV-4797, 2011 WL
7562706, at *5 (E.D.N.Y. Dec. 28, 2011) (citing Datskow v.
Teledyne, Inc., Continental Prods. Di v., 8 99 F. 2d 12 98, 1302-03
(2d Cir. 1990)); see also Democratic Republic of Congo v. FG
Hemisphere Assoc., LLC, 508 F.3d 1062, 1064 (D.C. Cir. 2007)
(finding waiver where a defendant "engaged in extensive post-
default litigation" and failed to seek dismissal "before the
court 1 s and parties 1
time [was] consumed in struggle over the
substance of the suit").
In sum, Defendants forfeited their jurisdictional defense
both by omitting it from their 2002 Motion to Dismiss and by
failing to promptly assert it aft.er Goodyear was decided. 3
Consequently, the Court shall exercise jurisdiction over them.
3
Having so concluded, the Court need not reach whether the
standard in Goodyear applies to Defendants or whether Plaintiffs
have satisfied that standard.
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III. CONCLUSION
For the foregoing reasons, Defendants' Motion for Judgment
on the Pleadings shall be denied. An Order shall accompany this
Memorandum Opinion.
June 23, 2014
Copies to: attorneys on record via ECF
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